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District Court 15 February 2022

Wells v Mexted

[2022] NSWDC 20

Assault & violence
LIMITATIONS WHAT STEPS DID THE PLAINTIFF TAKE ASSAULT AND BATTERY FIGHT AMONGST NEIGHBOURS DAMAGES ASSESSMENT OF LOSS

Citation: Wells v Mexted [2022] NSWDC 20
Court: District Court of New South Wales
Date: 15 February 2022
Judge: Strathdee DCJ

Background

The plaintiff, a registered nurse, and the defendant were neighbours on Holloway Drive, Jilliby. On 23 September 2012, the plaintiff's small dog strayed onto the defendant's property and entered his chicken pen. The plaintiff went onto the defendant's land to retrieve the dog, and an altercation followed between the two neighbours.

The plaintiff alleged the defendant screamed at her, blocked her exit, and struck her across the back, causing her to fall forward. She claimed significant ongoing physical and psychological injuries as a result. The defendant denied the assault, pleaded self-defence, and argued that the plaintiff had contributed to the incident by trespassing on his property while her dog was attacking his livestock.

The Statement of Claim was not filed until 21 September 2018, almost six years after the alleged incident. The defendant pleaded that the claim was statute-barred under the Limitation Act 1969 (NSW). The parties agreed the trial would run to completion before the court determined the limitation question.

  • Whether the plaintiff's claim was statute-barred under the Limitation Act 1969 (NSW), having been filed approximately six years after the alleged incident
  • Whether, under sections 50C and 50D of the Limitation Act, time did not begin to run until the plaintiff had, or ought reasonably to have acquired, the relevant knowledge
  • Whether the defendant committed assault and battery against the plaintiff
  • What damages, if any, the plaintiff was entitled to recover

Decision

Limitation question: The court found that the plaintiff's claim was statute-barred. Under the Limitation Act 1969 (NSW), a personal injury claim arising from an act of intentional assault must generally be brought within three years. Sections 50C and 50D extend that period where a plaintiff did not have, and could not reasonably have acquired, knowledge of the occurrence of the injury, its cause, and its significance. The plaintiff's case was that she did not consult a lawyer until 20 September 2018 and had taken no prior legal steps. The court was not satisfied that this explanation was sufficient to displace the limitation period, given the nature of the incident and the knowledge the plaintiff plainly had at the time.

Liability: The court also considered the merits of the assault and battery claim in full. The plaintiff's evidence was found to be significantly inconsistent, both internally and when compared with prior statements. The defendant's version of events was not rejected. The court was not persuaded, on the balance of probabilities, that the defendant had committed the alleged assault and battery. The defences under sections 52 and 53 of the Civil Liability Act 2002 (NSW) (self-defence) and section 5S (contributory negligence) were also considered.

Damages: Although the finding on liability and limitation made a damages assessment unnecessary, the court nonetheless considered what damages would have been awarded had the plaintiff succeeded. The court accepted that the plaintiff had suffered a fractured wrist in the incident but was not persuaded she had sustained the more extensive injuries she claimed. The court indicated it would have awarded a buffer of $10,000 for past economic loss (inclusive of superannuation), $5,000 for domestic care and assistance, and nothing for future economic loss, treatment costs, or non-economic loss. The court's view was that the injury would not have reached the threshold required for a non-economic loss award under the Civil Liability Act.

Orders Made

  • Judgment for the defendant.
  • The plaintiff is to pay the defendant's costs as agreed or assessed.
  • Liberty granted to the parties to apply within 14 days should any other costs order be sought.

Key Takeaways

  • The District Court confirmed that a plaintiff's failure to seek legal advice for nearly six years after an alleged assault will not necessarily enliven the extended limitation period under sections 50C and 50D of the Limitation Act 1969 (NSW), particularly where the plaintiff had direct knowledge of the incident and its consequences at the time it occurred.
  • Inconsistent evidence given by a plaintiff, both in prior statements and at trial, can be fatal to a claim in assault and battery, where the court must assess credibility across competing versions of the same event.
  • Where a plaintiff has complex pre-existing conditions, courts will scrutinise claims that an incident caused or aggravated multiple serious injuries, and may accept only a more limited physical consequence where the evidence does not support a broader case.
  • Under the Civil Liability Act 2002 (NSW), an injury must reach the applicable threshold before non-economic loss damages become available; a fractured wrist, on its own, was found to fall below that threshold in this case.
  • Even where a limitation defence succeeds and liability is not established, courts may address damages in the alternative, providing an indicative assessment for completeness.

Legislation and Cases Referenced

Legislation:
- Civil Liability Act 2002 (NSW), including ss 5S, 52, 53
- Limitation Act 1969 (NSW), including ss 50C, 50D

Cases:
- Baker-Morrison v State of NSW [2009] NSWCA; (2009) 74 NSWLR 454
- Best v Rosamond [2020] NSWCA 90
- Heydon v NRMA Ltd (2000) 51 NSWLR 1
- State of NSW v Gillett [2012] NSWCA 83